By: Jim Cline and Eamon McCleery
In Snohomish County, Decision 12723-B (PECB, 2018), PERC overturned the five-day suspension of the Guild’s President for allegedly violating a County policy against having personal cell phones in the secure portions of the County Jail. PERC found that the County’s actions helped create a situation in which it could impose discipline. Therefore, it concluded that the real reason for the discipline was retaliation for the President’s Guild activities.
In October 2016, the Guild President Carrell testified at an interest arbitration hearing for the Guild. One topic of his testimony was the County’s cell phone policy at the jail. After the interest arbitrator issued his award, the County issued a directive that changed its existing cellphone policy and to prohibit personal electronic devices in the secure portions of the jail. After that new policy took effect, the County scheduled a personnel complaint investigation of Carrell and scheduled it to be held in a secure part of the jail. At the beginning of the interview, Carrell showed the investigating Lieutenant his cellphone and asked if he could record the interview. The Lieutenant agreed. At the end of the interview, the Lieutenant asked Carrell to confirm that the cellphone was his personal phone. When Carrell did so, the Lieutenant informed Carrell that he was in violation of the new cell phone directive.
A different Lieutenant investigated the cellphone incident and recommended that the President receive a written reprimand. When that recommendation went up the chain of command, however, Captain Young rejected it and instead imposed five-day suspension. Young did so based on his conclusion that Carrell had “intentionally disregarded” the cellphone directive.
The Corrections Guild filed a ULP complaint— a PERC hearing examiner found the insubordination charge to be provable and the discipline to be within employer practices for imposing discipline on other employees and dismissed the ULP complaint.
On appeal before the PERC Commission, the Guild argued that the County had retaliated against the President for his union activities, including his testimony during the interest arbitration hearing. The Guild further argued that the County’s stated reason for disciplining the President—that he had violated the County’s cellphone directive—was pretextual.
Ultimately, the Commission agreed with the Guild and overturned the discipline and the Examiner . In reaching that decision, the Commission relied on two factors. The first factor was that, rather than simply address the cellphone issue immediately, the County decided to complete the interview, allow the President to violate the cellphone policy, and then jump on the opportunity for discipline that the County itself had helped to create. The Commission wrote,
Rather than address the issue by giving Carrell the opportunity to remove his cell phone or by changing the interview location, the employer allowed Carrell to use the cell phone thereby creating an opportunity for discipline.
The second factor was that the facts did not support Captain Young’s decision to disregard the investigator’s recommended discipline in favor of harsher discipline. As the Commission wrote,
Young’s memo in the investigatory file was brief and based on his conclusions regarding Carrell’s knowledge. Somehow Young determined that Carrell “intentionally disregarded” the directive and showed “blatant disregard” for the employer’s rules. A more reasonable conclusion would have been that Carrell disregarded the directive because he believed Moll had given him permission to do so.
Thus, the Commission concluded that, taken together, those facts demonstrated that the employer discriminated against Carrell for engaging in protected union activity. As a remedy, it ordered that the County rescind Carrell’s discipline and provide him back pay.
As the Commission was aware, this Snohomish County action was not an isolated attack on the Guild. Numerous ULPs are pending against Snohomish County and the Commission has emphasized that both parties need to improve their collective bargaining communications. This likely helped lead the Commission to its conclusion that the Guild President was set up.
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